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New rules for confiscation of proceeds of crime

All clients, in particular clients that cooperate with public sector entities or clients that are present on the stock market, should be aware of a significant draft bill which, if it becomes law, would introduce new rules regarding the confiscation of proceeds from crime. The following are the most important changes:

1. Confiscation of the company’s assets if a company was used to commit a crime

Under the draft bill, the assets of a company can be subject to confiscation (forfeiture) if the company was used to commit a crime. The draft regulation would apply:

to any crime from which the perpetrator gained financial benefit worth at least PLN 200,000 (EUR 50,000) or a criminal tax offence where the value of the lost tax revenue exceeded 500 times the minimum wage, i.e. currently PLN 925,000 (approx. EUR 210,500);

to specific crimes (e.g. failure to disclose information related to a public offering of shares), even if the perpetrator did not gain financial benefit;

even if the company is owned by other person(s), if the owner of the company or other authorised person (e.g. supervisory board member) knew or could have known that the company could be used to commit a crime but did not exercise due diligence.

2. Compulsory company management

The draft provisions provide that the prosecutor may appoint a compulsory manager to a company to secure the future confiscation of the company’s assets. The appointment may be made if the prosecutor suspects that there are grounds for the confiscation indicated in point 1 above. The prosecutor’s decision can be appealed against in court.

3. Presumption of the criminal origins of proceeds

The new regulation will introduce a presumption that the property of a person convicted of more severe crimes (such as e.g. theft, fraud, bribery), by which he gained or could have gained a financial benefit, is of criminal origin and will therefore be subject to confiscation. The presumption applies to all assets obtained by the convicted person in the period from 5 years prior to the crime until the first convicting judgment. To avoid confiscation the convicted person or any other interested person will have to prove that the asset was obtained legally.

The confiscation also applies to assets which were transferred to a third party, as well as to profits which those assets produced, unless the third party proves that it was impossible for him to know that the assets were obtained through a crime. Moreover, the draft bill penalises the mere possession of assets obtained through a crime, if the person holding the assets could have been aware of their criminal origin.

The draft bill is meant to implement EU Directive 2014/42 on the freezing and confiscating of instrumentalities and proceeds of crime in the EU. The deadline for implementing the directive for all EU member states is 4 October 2016. However, most of the above-described Polish draft regulations go beyond the scope required by the directive.

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